Microwave Safety Systems Pty Ltd v Commissioner for Fair Trading, Department of Commerce [2008] NSWSC 37

  • In order for a search warrant to be issued under the Fair Trading Act, there must be reasonable grounds to believe that there was evidence of a contravention of the Act.

In this case, the Department was concerned that the applicant was making false representations that employers needed to have microwave ovens in the workplace tested regularly for radiation leakage in order to meet their duty of care towards employees.

An officer of the Department had applied for a search warrant to enter citing the following grounds.

"3.1 On and around 20 February 2007 www.microwavesafe.net contained a document entitled "Microwave Oven Radiation Leakage Limits - Guidelines" that was in the nature of an official information bulletin sourced from and approved by bodies such as ARPANSA, Standards Australia and the National Health and Medical Research Council and was designed solely to assist employers meet their workplace safety obligations, rather than being an advertisement for Microwave Safety Systems Pty Ltd. Such representation constitutes a contravention of section 44 (f) of the Fair Trading Act, 1987."

On prima facie this information was sufficient to justify a search warrant being issued. The difficulty was, however, that the document referred to, had never appeared on the plaintiff's website.

The court noted that the necessary belief that an officer must have on reasonable grounds that there was evidence of a contravention of a provision of the Act carried with it the logically anterior requirement of a belief on reasonable grounds that there has been a contravention of a provision of the Act. In circumstances where the document had not appeared on the plaintiff's website, no person in the position of the officer of Fair Trading could have held a belief on reasonable grounds that evidence of a contravention of a provision of the Act could have been found at the premises.

The plaintiff also complained that the range of documents and things to be searched for in the warrant was too wide. It was limited to evidence relating to "false representations section 44F [sic] Fair Trading Act 1987" which the court considered was wholly inadequate as a means of limiting the breadth of the search. It amounted in effect to the issue of a general warrant as it did not enable any person receiving the warrant to understand or ascertain the scope of the search that it authorised.

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